Citation Nr: 0400482
Decision Date: 01/08/04 Archive Date: 01/22/04
DOCKET NO. 02-04 388 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for a low back
disorder.
4. Entitlement to an initial compensable rating for
gastroenteritis and probable irritable bowel syndrome.
5. Entitlement to an increased rating for adjustment
disorder, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. A. Speck, Associate Counsel
INTRODUCTION
The veteran had active service from April 1995 to December
1998.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Muskogee, Oklahoma (RO).
The issues of entitlement to service connection for tinnitus
and a low back disorder will be addressed in the REMAND
portion of this decision. These issues are remanded to the
RO via the Appeals Management Center (AMC), in Washington,
D.C. VA will notify the appellant if further action is
required on his part.
FINDINGS OF FACT
1. The veteran is not shown to have bilateral hearing loss
for VA purposes that is etiologically related to active
service.
2. The veteran's gastroenteritis is not shown to be
manifested by moderate irritable bowel syndrome with frequent
episodes of bowel disturbances with abdominal distress.
3. The veteran's adjustment disorder is not shown to be
manifested by occupational and social impairment with reduced
reliability and productivity due to such symptoms as panic
attacks, memory impairment, impaired judgment, and difficulty
establishing and maintaining effective work and social
relationships.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by active service, nor may it be presumed to have been so
incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2003).
2. The schedular criteria for an initial compensable
evaluation for gastroenteritis and probable irritable bowel
syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 4.114, Diagnostic Code
7319 (2003).
3. The schedular criteria for a rating in excess of 30
percent for an adjustment disorder have not been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §
4.130, Diagnostic Code 9440 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (VCAA) [codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, 5107]. The VCAA eliminated the
former statutory requirement that claims be well-grounded.
Cf. 38 U.S.C.A. § 5107(a) (West 2002). The VCAA includes an
enhanced duty on the part of VA to notify a claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits. The VCAA also redefines the
obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. See 38
U.S.C.A. §§ 5103, 5103A (West 2002). Regulations
implementing the VCAA have been enacted. See 38 C.F.R. §§
3.102, 3.156(a), 3.159, and 3.326(a) (2003).
In this case, the veteran's claims were filed in February
1999 and remain pending. The United States Court of Appeals
for Veterans Claims (the Court) held in Holliday v. Principi,
14 Vet. App. 280 (2001) that the VCAA was potentially
applicable to all claims pending on the date of enactment,
citing Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Subsequently, however, the United States Court of Appeals for
the Federal Circuit (Federal Circuit Court) held that Section
3A of the VCAA (covering the duty to notify and duty to
assist provisions of the VCAA) did not apply retroactively,
and overruled both Holliday and Karnas to the extent that
they allowed for such retroactive application and to the
extent they conflict with the United States Supreme Court's
and the Federal Circuit Court's binding authority. Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, to the
extent that the Kuzma case may be distinguished from the
instant case because of the finality of the Board decision in
Kuzma at the time of the November 2000 VCAA enactment date
and because the current claims are still pending before VA,
the Board finds that the provisions of the VCAA are
applicable to this pending appeal.
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant. See also Quartuccio v. Principi, 16 Vet. App.
183 (2002).
The veteran was informed in June 1999 and February 2002
rating decisions of the evidence needed to complete his
claims and he was provided an opportunity to submit such
evidence. Moreover, in a February 2002 statement of the
case, the RO notified the veteran of regulations pertinent to
service connection and increased rating claims, informed him
of the reasons why his claims had been denied, and provided
him additional opportunities to present evidence and argument
in support of his claims.
In February 2001 and August 2002 letters, the veteran was
informed of VA's duty to obtain evidence on his behalf. The
veteran was notified that VA would obtain all relevant
service medical records, VA medical records, and reports of
examinations or treatment at non-VA facilities authorized by
VA. In addition, VA would request other relevant records
held by any Federal agency or department. In turn, the
veteran was informed of his duty to provide VA with enough
information to identify and locate other existing records,
i.e., names of persons, agencies, or companies that hold
relevant medical records, addresses of these individuals, and
the dates that such treatment was received.
In this case, the February 2001 and August 2002 letters
requested responses within 60 days and 30 days respectively.
At the same time, however, more than one year has now passed
since those notifications were provided. Additional evidence
was submitted in support of the veteran's claims after the 60
and 30 days had expired and he was thus apparently not
mislead by the time periods provided in the letters. In
particular, after the February 2001 letter, VA outpatient
treatment records were received in March 2002. After the
August 2002 letter, additional VA outpatient treatment
records were received and the veteran's representative
submitted two statements. Those records have been included
in the claims file. Under the foregoing circumstances, the
Board considers the duty to notify has been met. See
Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat.
2651 (Dec. 16, 2003).
The VCAA provides that VA shall make reasonable efforts to
assist in obtaining evidence necessary to substantiate a
claim for VA benefits, unless no reasonable possibility
exists that such assistance would aid in substantiating the
claim. Service medical records have been received, as have
VA outpatient treatment records. In addition, the veteran
was provided with VA examinations in March 1999, November
1999, and December 1999.
The Board thus finds that VA has done everything reasonably
possible to assist the veteran. In the circumstances of this
case, additional efforts to assist the veteran in accordance
with the VCAA would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided). VA has
satisfied its duties to inform and assist the veteran at
every stage of this case.
B. Legal analysis
The Board has reviewed all the evidence of record, including
but not limited to the veteran's contentions; lay statements;
service medical records; and VA outpatient treatment records
and examination reports. Although the Board has an
obligation to provide adequate reasons and bases supporting
this decision, it is not required to discuss each and every
piece of evidence in a case. The relevant evidence including
that submitted by the veteran will be summarized where
appropriate.
Applicable law provides that service connection will be
granted if it is shown that the veteran has a disability
resulting from an injury suffered or disease contracted in
the line of duty, or for aggravation of a preexisting injury
or disease contracted in the line of duty, in active
military, naval, or air service. See 38 U.S.C.A.
§§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). Service
connection may also be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002);
38 C.F.R. § 3.303(d) (2003); Cosman v. Principi, 3 Vet. App.
503, 505 (1992). Moreover, certain chronic diseases, such as
sensorineural hearing loss, are entitled to service
connection when such disease is manifested to a compensable
degree within one year of separation from service. See 38
U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§
3.307, 3.309 (2003).
In order to establish service connection for the claimed
disorder, there must be medical evidence of a current
disability; medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999). A determination as to whether these requirements are
met is based on an analysis of all the evidence of record and
the evaluation of its credibility and probative value. See
Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
Once a veteran's disability has been service-connected,
disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. See 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. Part 4 (2003). When a question
arises as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating. Otherwise, the lower rating will be assigned.
See 38 C.F.R. § 4.7 (2003). After careful consideration of
the evidence, any reasonable doubt remaining is resolved in
favor of the veteran. See 38 C.F.R. § 4.3 (2003). In
addition, a disability rating may require re-evaluation in
accordance with changes in a veteran's condition. It is thus
essential in determining the level of current impairment that
the disability is considered in the context of the entire
recorded history. See 38 C.F.R. § 4.1 (2003).
Evidence to be considered in the appeal of an initial
assignment of a rating disability is not limited to that
reflecting the then current severity of the disorder.
Fenderson v. West, 12 Vet. App. 119 (1999). Compare
Francisco v. Brown, 7 Vet. App. 55, 58 (1994) [where
entitlement to compensation has already been established and
an increase in the disability rating is at issue, the present
level of disability is of primary concern]. In Fenderson,
the Court also discussed the concept of the "staging" of
ratings, finding that, in cases where an initially assigned
disability evaluation is disputed, it was possible for a
veteran to be awarded separate percentage evaluations for
separate periods based on the facts found during the appeal
period.
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. 38 U.S.C.A. §
7104(a) (West 2002). When there is an approximate balance of
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2003).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that "a veteran need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim.
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert
at 54.
In making its determination, the Board must determine the
credibility and probative value of the evidence. See Madden
v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases
cited therein (holding that the Board has the duty to assess
the credibility and weight to be given to the evidence). The
Board may not base a decision on its own unsubstantiated
medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171,
175 (1991).
1. Bilateral hearing loss
The veteran is seeking entitlement to service connection for
bilateral hearing loss. The Board has carefully reviewed the
evidence and statements made in support of the veteran's
claim and finds that, for reasons and bases to be explained
below, a preponderance of the evidence is against the
veteran's claim and service connection therefore cannot be
granted.
For the purposes of applying the laws administered by VA,
impaired hearing is considered a disability when the
veteran's auditory threshold (puretone decibel loss) in one
of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is
40 decibels or greater; or when the auditory thresholds for
at least three of the above mentioned frequencies are 26
decibels or greater. Impaired hearing for VA purposes may
also be found when the veteran's speech recognition scores,
using the Maryland CNC Test, are less than 94 percent. See
38 C.F.R. § 3.385 (2003).
As noted above, in order for service connection to be
granted, a current disability; an in-service disease or
injury; and a medical nexus opinion must be established. See
Hickson, supra.
The February 1995 service induction examination report showed
no complaints, treatment, or diagnoses of bilateral hearing
loss. An audiological examination revealed the following:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
5
5
0
LEFT
15
0
0
0
0
During service in November 1998, the veteran asserted that
his hearing was getting worse and reported that he had
difficulty hearing complete sentences over the phone. A
November 1998 audiological examination revealed the
following:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
30
20
25
LEFT
15
10
20
20
20
At his November 1999 VA audiological examination, the veteran
complained of bilateral hearing loss, with the right ear
being worse than the left. He reported a history of military
noise exposure and stated that he had used hearing protection
devices on a regular basis during service. An examination of
the veteran's hearing revealed the following:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
10
10
LEFT
5
10
5
5
15
Puretone decibel averages were 8 decibels for the right ear
and 9 decibels for the left. Speech recognition was 96
percent bilaterally. The examiner commented that the
veteran's hearing was within normal limits bilaterally.
The Board has reviewed all the objective medical evidence of
record and finds no evidence that the veteran currently has
bilateral hearing loss, as defined by VA. Absent evidence of
bilateral hearing loss during active service or currently,
the veteran's service connection claim is not warranted. A
claim for service connection requires medical evidence
showing that the veteran currently has the claimed
disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992);
Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service
connection may not be granted unless a current disability
exists]. The record contains no evidence that the veteran
has been diagnosed with bilateral hearing loss during active
service or currently. In addition, the November 1999 VA
examiner stated that the veteran's hearing was within normal
limits bilaterally.
To the extent that the veteran contends that he has bilateral
hearing loss that is related to active service, it is now
well established that a person without medical training, such
as the veteran, is not competent to provide evidence on
medical matters such as diagnosis or etiology of a claimed
condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-
95 (19920; see also 38 C.F.R. § 3.159(a) [competent medical
evidence means evidence provided by a person who is qualified
through education, training, or experience to offer medical
diagnoses, statements, or opinions].
In summary, for the reasons and bases expressed above, the
Board concludes that the preponderance of the evidence is
against finding that the veteran currently suffers from
bilateral hearing loss that is etiologically related to
active service. As such, service connection is not warranted
and the veteran's claim is denied.
2. Gastroenteritis
The veteran is currently assigned a noncompensable disability
rating for gastroenteritis and probable irritable bowel
syndrome. He contends that his gastrointestinal disorder is
more disabling than currently evaluated and has appealed for
an increased (compensable) rating.
The veteran's gastroenteritis and probable irritable bowel
syndrome is currently rated under 38 C.F.R. § 4.114,
Diagnostic Code 7319 (2003). The schedular criteria provide
a noncompensable rating for mild irritable colon syndrome
with disturbances of bowel function with occasional episodes
of abdominal distress. A 10 percent disability rating is
assigned for moderate irritable colon syndrome with frequent
episodes of bowel disturbances with abdominal distress.
Finally, a 30 percent disability rating is assigned for
severe irritable colon syndrome with diarrhea, or alternating
diarrhea and constipation, with more or less constant
abdominal distress.
The veteran's February 1995 induction examination report
showed no complaints, treatment, or diagnoses of
gastrointestinal or stomach disorder. In November 1995, the
veteran complained of vomiting and diarrhea. He was
diagnosed with gastroenteritis. He was again diagnosed with
gastroenteritis in February 1996, September 1997, December
1997, January 1998, and July 1998.
At his March 1999 VA examination, the veteran reported that
his stomach disorder began in 1995 and had only occurred in
the morning when he awoke with cramping and diarrhea. He
also stated that his disorder was brought on by sudden noise.
He asserted that the signs and symptoms of his disorder
occurred almost daily until 1998. At that time, the degree
of his gastroenteritis lessened, though he continued to have
symptoms when he felt anxious or nervous. He currently
denied nausea, vomiting, heartburn, or any symptoms of
hyperacidity. He also denied any travel outside the United
States. Ultimately, the veteran was diagnosed with a history
of a stomach disorder, probably irritable bowel syndrome.
After applying the above criteria to the facts of this case,
the Board concludes that the preponderance of the evidence is
against a compensable rating evaluation for the veteran's
gastroenteritis with probable irritable bowel syndrome. The
veteran's service-connected gastroenteritis is not shown to
be manifested by moderate irritable colon syndrome with
frequent episodes of bowel disturbances or abdominal
distress. At his March 1999 VA examination, the veteran
stated that he had experienced cramping and diarrhea almost
daily until 1998, when his symptoms "lessened." He
reported that these symptoms occurred less frequently, and
only occurred when he felt anxious or nervous. As such,
there is no evidence that the veteran suffered from
gastroenteritis that was "frequent" or more than
"moderate" in severity. There is also no evidence that the
veteran's gastroenteritis exhibits more than occasional
abdominal distress. While he has reported some cramping and
diarrhea, he has denied nausea, vomiting, heartburn, or any
symptoms of hyperacidity.
For the reasons and bases expressed above, the Board finds
that a compensable rating evaluation for gastroenteritis and
probable irritable bowel syndrome is not warranted at this
time. The veteran's appeal is accordingly denied.
3. Adjustment disorder
The veteran is currently assigned a 30 percent disability
rating for an adjustment disorder. He contends that his
disorder is more disabling than currently evaluated and has
appealed for an increased rating.
The veteran's adjustment disorder is currently rated under
38 C.F.R. § 4.130, Diagnostic Code 9440 (2003). Under that
diagnostic code, a 30 percent disability rating is warranted
for occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). See 38 C.F.R.
§ 4.130, Diagnostic Code 9440 (2003).
A 50 percent disability rating requires occupational and
social impairment with reduced reliability and productivity
due to such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short-and long-term memory (e.g.
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing effective work and social relationships. Id.
A 70 percent disability rating is warranted for occupational
and social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. Id.
Finally, a 100 percent disability rating requires total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name. Id.
The evidence considered in determining the level of
impairment under 38 C.F.R. § 4.130 is not restricted to the
symptoms provided in the diagnostic code. Instead, VA must
consider all symptoms of a claimant's condition that affect
the level of occupational and social impairment, if
applicable, those identified in the DSM-IV (American
Psychiatric Association: Diagnostic and Statistical Manual of
Mental Disorders (4th ed. 1994)). See Mauerhan v. Principi,
16 Vet. App. 436 (2002). Within the DSM-IV, Global
Assessment Functioning (GAF) scores are a scale reflecting
the "psychological, social, and occupational functioning on
a hypothetical continuum of mental health-illness." See
Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also
Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores
ranging between 51 to 60 reflect moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic
attacks) or moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers
or co-workers). See DSM-IV at 47. GAF scores ranging
between 61 and 70 reflect some mild symptoms (e.g., depressed
mood and mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional
truancy, or theft within the hospital), but generally
functioning pretty well, has some meaningful interpersonal
relationships. See DSM-IV at 46.
A GAF score is highly probative as it relates directly to the
veteran's level of impairment of social and industrial
adaptability, as contemplated by the rating criteria for
mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207
(1994).
The veteran's service medical records reflect that he was
diagnosed with major depression in January 1996. In
September 1997, he was diagnosed with an adjustment disorder
and depressed mood. It was noted that he had partner
relationship problems. In September 1998, the veteran
reported having off and on suicidal ideations, though he
denied current thoughts of suicide. He also reported having
memory impairment.
VA outpatient treatment records dated November 1999 to
February 2002 reflect that in June 2000, the veteran was
diagnosed with bipolar disorder, by self report. He was
given a GAF score of 62. In July 2000 he was diagnosed with
a probable bipolar disorder. At that time, he described wide
mood swings with spending sprees. He also expressed suicidal
ideation, without a plan, and complained of insomnia for 5
years. His affect was described as being flat. In June 2001
the veteran reported of mood swings, insomnia, appetite
disparity, and difficulty in his marital relationship. He
denied suicidal and homicidal intent.
At his November 1999 VA examination, the veteran stated that
he had relationship stressors, mood swings, depression, and
hyperactivity. He also complained of having insomnia and
temper problems. He denied suicidal attempts. Upon
examination, the veteran's affect was appropriate and his
thought process was normal. However, he did appear depressed
and anxious. His memory was normal, as was his concentration
and attention. His social and industrial impairment was
characterized as being "mild to moderate." The veteran was
diagnosed with depressive disorder, not otherwise specified,
and given a GAF score of 55.
At his December 1999 psychological evaluation, the veteran
complained of being moody, depressed, hyper, and of having
insomnia. He denied suicidal ideation or intent. Upon
examination, the veteran's thoughts were logical and there
was no evidence of a thought disorder. The examiner
commented that the veteran had a significant level of anxiety
and worry, and was likely to brood or ruminate about matters.
It was also noted that he was likely to display poor social
judgment. He was ultimately diagnosed with bipolar I
disorder and given a GAF score of 55.
After applying the above criteria to the facts of this case,
the Board concludes that the preponderance of the evidence is
against an evaluation in excess of 30 percent for the
veteran's service-connected adjustment disorder.
The veteran's adjustment disorder symptoms, as reflected in
the medical findings of record, show mild difficulty in
social and occupational functioning with occasional decrease
in work efficiency with intermittent periods of inability to
perform occupational tasks. The veteran's subjective
complaints include moodiness, insomnia, depression, anxiety,
and relationship problems with his spouse. However, the
objective medical evidence of record, as reported in the
November 1999 VA examination report, reflects that the
veteran suffers from "mild to moderate" impairment due to
his adjustment disorder. Such findings are consistent with a
30 percent rating evaluation.
Although the veteran has been found to experience some of the
criteria contemplated for the next higher disability rating
of 50 percent, such as disturbances of mood and flattened
affect, examination reports have not shown the presence of
most of the other symptoms, such as circumstantial,
circumlocutory, or stereotyped speech, panic attacks more
than once per week, impairment of short and long-term memory,
difficulty in understanding complex commands, impaired
judgment, and impaired abstract thinking. On the contrary,
several of the VA outpatient treatment reports specifically
indicated that the veteran's memory and abstract thinking
were within normal limits, as was his concentration and
attention. The Board thus finds that the veteran's
adjustment disorder is not of such severity as to warrant a
50 percent disability rating under the provisions of
Diagnostic Code 9440 (2003). The veteran's GAF scores of 55
and 62 support this conclusion.
For the reasons and bases expressed above, the Board finds
that a rating evaluation in excess of 30 percent for the
veteran's adjustment disorder is not warranted. As such, his
appeal is denied.
C. Extraschedular consideration
In the February 2002 statement of the case, the RO concluded
that an extraschedular evaluation was not warranted for the
veteran's service-connected gastroenteritis and adjustment
disorder. Since this matter has been adjudicated by the RO,
the Board will consider the provisions of 38 C.F.R.
§ 3.321(b)(1) (2003). See also VAOPGCPREC 6-96.
Ordinarily, the VA Rating Schedule will apply unless there
are exceptional or unusual factors which would render
application of the schedule impractical. See Fisher v.
Principi, 4 Vet. App. 57, 60 (1993). According to the
regulation, an extraschedular disability rating is warranted
upon a finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization that would render impractical the application
of the regular schedular standards. 38 C.F.R. § 3.321(b)(1)
(2003); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The
veteran has not identified any factors which may be
considered to be exceptional or unusual, and the Board has
been similarly unsuccessful.
The veteran has not indicated, nor has he presented evidence
to support the premise, that his gastroenteritis or
adjustment disorder has resulted in marked interference with
employment so as to render impracticable the application of
the regular schedular standards. In addition, the veteran
has not presented evidence to show that he has been
hospitalized after service due to his gastroenteritis or
adjustment disorder. While the veteran has asserted that the
disabilities cause pain and impairment, such impairment is
contemplated in the disability ratings that have been
assigned. Loss of industrial capacity is the principal
factor in assigning schedular disability ratings. See
38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1
specifically states: "[g]enerally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability." See also Moyer v. Derwinski, 2 Vet. App.
289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993) [noting that the disability rating itself is
recognition that industrial capabilities are impaired]. The
Board has been unable to identify any other factor consistent
with an exceptional or unusual disability picture, and the
veteran has pointed to none.
In short, the veteran's service-connected gastroenteritis and
adjustment disorder do not present such an exceptional or
unusual disability picture as to render impractical the
application of the regular schedular standards so as to
warrant the assignment of an extraschedular rating under 38
C.F.R. § 3.321(b)(1) (2003). Accordingly, extraschedular
evaluations are not warranted.
ORDER
Service connection for bilateral hearing loss is denied.
Entitlement to an initial compensable rating evaluation for
gastroenteritis with probable irritable bowel syndrome is
denied.
Entitlement to a rating evaluation in excess of 30 percent
for an adjustment disorder is denied.
REMAND
The Board has determined that additional development is
necessary for the issues of entitlement to service connection
for tinnitus and a low back disorder.
The Board notes that in an August 2000 rating decision, the
RO denied service connection for tinnitus on the basis that a
well-grounded claim had not been presented. In February
2001, a statement was received in which the veteran appeared
to disagree with that determination. However, in January
2001, the VA Office of General Counsel issued an opinion
addressing claim readjudication under the VCAA. In that
opinion, the General Counsel stated that, when a prior rating
decision is readjudicated under section 7(b) of the VCAA, the
claim must be readjudicated as if the original decision that
had denied the claim as not well grounded never existed.
Moreover, since the claim is to be readjudicated as if the
prior decision never existed, the claim must be developed and
readjudicated at the RO. See VAOPGCPREC 3- 2001. VAOPGCPREC
3-2001 also states that any prior notice of disagreement in a
case that is readjudicated under the VCAA is a nullity by
operation of the statute. If a claimant wants to appeal a
decision based on a section 7(b) readjudication, the claimant
must submit a new notice of disagreement, there must be a
statement of the case and a timely filed appeal. See
VAOPGCPREC 3-2001.
Thus, the RO, in an April 2002 rating decision, again
considered the claim for service connection for tinnitus. In
a subsequently submitted Statement of Accredited
Representative in Appeals Case, the veteran's representative
submitted a statement in which reference was made to the
claim for service connection for tinnitus. Although that
statement is undated and not date stamped by the RO, it
appears to have been added to the record before a December
2002 rating decision on other issues and before notice of
certification to the Board of the veteran's appeal in
December 2002. Thus, it would appear that the
representative's statement does constitute a timely filed
notice of disagreement to the April 2002 rating decision that
denied service connection for tinnitus. Since, that notice
of disagreement is still pending, it is proper to remand this
claim because the veteran has not been provided a statement
of the case on this issue. See Manlincon v. West, 12 Vet.
App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet.
App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124,
130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). An issue
will be returned to the Board after issuance of the statement
of the case only if perfected by the filing of a timely
substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93,
97 (1997); Archbold, 9 Vet. App. at 130.
With respect to the issue of entitlement to service
connection for a low back disorder, the Board has determined
that additional examination is necessary. At the veteran's
March 1999 VA examination, the examiner stated that the
veteran had "chronic mid and low back strain, intermittently
symptomatic." She continued by noting that there was
"insufficient clinic evidence present to warrant a diagnosis
of an acute or chronic disorder or residuals thereof." The
Board finds that such statements are contradictory. As such,
an additional examination is necessary to determine if the
veteran currently has a low back disorder that is
etiologically related to active service.
Therefore, in order to give the veteran every consideration
with respect to the present appeal and to ensure due process,
it is the Board's opinion that further development is
necessary. Accordingly, this case is REMANDED for the
following action:
1. The RO should provide the veteran and
his representative a statement of the
case as to the issue of entitlement to
service connection for tinnitus. The
veteran should be informed that he must
file a timely and adequate substantive
appeal in order to perfect an appeal of
any issue to the Board. See 38 C.F.R.
§§ 20.200, 20.202, and 20.302(b) (2003).
If a timely substantive appeal is not
filed, the claim should not be certified
to the Board. If so, subject to current
appellate procedures, the case should be
returned to the Board for further
appellate consideration, if appropriate.
2. The RO should make arrangements with
the appropriate medical facility for the
veteran to be afforded an orthopedic
examination to determine whether he
currently has a low back disorder that is
causally or etiologically related to
active service. All studies, tests, X-
rays, and evaluations deemed necessary
should be performed. The examiner is
specifically requested to review all
pertinent records associated with the
claims file. All opinions should be
supported by clear rationale, and a
discussion of the facts and medical
principles involved would be of
considerable assistance to the Board.
The examiner should indicate that the
claims folder was reviewed in preparation
of the opinion.
3. After the above development has been
completed, and after giving the veteran
the full opportunity to supplement the
record if desired, the RO should review
the case and assure that all indicated
actions are complete. The RO should next
readjudicate the issue of entitlement to
service connection for a low back
disorder. If the determination remains
adverse to the veteran, he should be
furnished a supplemental statement of the
case and be afforded the applicable time
to respond thereto. The supplemental
statement of the case must contain notice
of all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
______________________________________________
S. L. KENNEDY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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